[Cite as State v. Hayes, 2014-Ohio-254.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO, CASE NO. 13-13-21 PLAINTIFF-APPELLEE,
v.
JAMES A. HAYES III, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0165
Judgment Affirmed
Date of Decision: January 27, 2014
APPEARANCES:
Scott B. Johnson for Appellant
Angela M. Boes for Appellee Case No. 13-13-21
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant James A. Hayes, III (“Hayes”) brings this appeal
from the judgment of the Court of Common Pleas of Seneca County finding him
guilty of two counts of felonious assault and sentencing him to a total prison term
of seven years. Hayes challenges the judgment claiming that his conviction was
against the manifest weight of the evidence and that he was denied effective
assistance of counsel. For the reasons set forth below, the judgment is affirmed.
{¶2} On September 12, 2012, the Seneca County Grand Jury indicted
Hayes on two counts. Doc. 1. Both counts alleged that Hayes had committed
felonious assault in violation of R.C. 2903.11(A)(2),(D)(1)(a), felonies of the
second degree. Id. On September 19, 2012, Hayes entered a plea of not guilty to
both counts. Doc. 14.
{¶3} Between February 25 and February 28, 2013, a jury trial was held.
Doc. 41. At trial, the State presented the testimony of seventeen witnesses and
Hayes presented the testimony of two witnesses. The first witness for the State
was Ohio State Trooper Anthony Scherley (“Scherley”). Tr. 156. Scherley
testified that on February 19, 2012, he stopped a white minivan after it pulled out
in front of him from a private drive. Tr. 157-58. When he approached the driver,
he observed blood on the driver as well as on the van. Tr. 158. Scherley then
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called for an ambulance. Tr. 159. The driver was Brian Armbruster
(“Armbruster”) and there was a passenger in the vehicle who was identified as
Roger Seifert (“Seifert”). Tr. 159. Scherley learned that Armbruster and Seifert
had earlier been in a fight at a bar and that Armbruster had been stabbed during it.
Tr. 159. The investigation was turned over to the Tiffin Police Department and
Armbruster was transported from the scene by ambulance. Tr. 159-60.
{¶4} The next witness for the State was Tiffin Police Officer Brent Riley
(“Riley”). Tr. 163. Riley testified that he was sent to Stiney’s Three Oaks Bar
(“Three Oaks”) in Tiffin, Seneca County, Ohio, to investigate a stabbing. Tr. 165.
He was sent to check the parking lot for signs of evidence and he located some
blood droplets. Tr. 165. A second officer at the scene found a small knife in the
grass near the parking lot. Tr. 166. Later in that shift, he was sent to investigate a
car crash in which he was informed the suspect for the stabbing might have been
involved. Tr. 166. At the scene, Riley observed blood on the red car and saw a
red t-shirt inside the car with blood on it. Tr. 167. The passenger in the red car
was Hayes. Tr. 167. The driver of the vehicle was Staci Hayes (“Staci”), Hayes’
wife. Tr. 167. While at the scene, Riley overheard Hayes tell the EMT’s that he
had been injured in a fight at a bar and that he wished to go to the hospital. Tr.
168. Hayes was then transported by the ambulance to the hospital. Tr. 168. The
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damaged vehicle was then towed to the Parks Department and placed in a secured
garage. Tr. 169. Armbruster’s minivan was also there. Tr. 169.
{¶5} Seneca County Sheriff’s Deputy Matthew Huffman (“Huffman”)
testified next for the State. Tr. 172. Huffman testified that he responded to an
accident call between a red Pontiac Grand Prix and a bronze Ford Focus. Tr. 174.
From the statements at the scene and the physical evidence, it appeared that Staci
had been driving. Tr. 174. As Huffman approached the vehicle, he saw blood on
Hayes and Staci. Tr. 175. Both Staci and Hayes stated that the blood was from
injuries received when Hayes “got jumped in a bar fight.” Tr. 176. Inside the
vehicle, Huffman saw a white t-shirt with blood on it.1 Tr. 176. Knowing of the
stabbing at the Three Oaks earlier, Huffman questioned whether it was related. Tr.
176. Huffman then contacted the Tiffin Police Department. Tr. 177. Huffman
then turned over the investigation to Riley and Lietenant Michelle Craig (“Craig”),
while Huffman completed the accident report. Tr. 177.
{¶6} The fourth witness for the State was Detective Shawn Vallery
(“Vallery”) of the Tiffin Police Department. Tr. 183-84. Vallery was the on-call
detective assigned to investigate the stabbing at Three Oaks. Tr. 185. He learned
that the victim was Armbruster. Tr. 185. Upon learning that Armbruster was
being taken to the emergency room, Vallery went there to speak with him. Tr. 1 This testimony contradicts Riley’s testimony that there was a red t-shirt with blood on it in the car. The color of the t-shirt was not resolved, but was not relevant.
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186. At the hospital, Vallery observed scrapes to Armbruster’s knees, a mark on
his left cheek and forehead, and blood on a bandage on the left side of his torso.
Tr. 186. After taking photographs of the injuries, Vallery collected Armbruster’s
clothing. Tr. 186. While at the hospital, Vallery learned about the accident and
that Staci and Hayes were coming into the hospital where Vallery was located. Tr.
189. Craig collected the clothing from Staci and Hayes. Tr. 189. Vallery then
identified the photographs of the clothing. Tr. 190-93. Specifically, Vallery
identified Exhibits 11 and 12 as photographs of a jacket recovered from Seifert.
Tr. 191. Exhibit 11 shows that there is a defect in the jacket.
{¶7} After leaving the hospital, Vallery went to Three Oaks to retrieve a
copy of the video recording. Tr. 194. Upon arriving back at the police station,
Vallery learned that Hayes was in critical condition and was having emergency
surgery. Tr. 194. Vallery later interviewed various occupants of the bar, the
bartender, and Seifert. Tr. 195. He also requested a warrant to search the vehicle.
Tr. 195. Some of the evidence was sent to BCII for testing. Tr. 195. Vallery was
able to identify the knife found at the scene, and testified that it had been sent to
BCII for testing. Tr. 196-97. Vallery also testified that the jacket worn by Seifert
on the night in question was Exihibit 38 and that he submitted it to BCII. Tr. 201.
{¶8} On cross-examination, Vallery testified that he did not speak to Seifert
until the next day. Tr. 205. When Seifert came to the station, he was not tested
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for alcohol consumption. Tr. 206. Vallery testified that he saw no need to test
Seifert as he assumed that he had been drinking the night before since he was at
the bar. Tr. 207. Vallery questioned Seifert because he was unsure who had
started the fight. Tr. 207. Vallery admitted that during his investigation, he heard
various stories and some statements were contradictory. Tr. 208. One of the
people he questioned mentioned there was a gun, but no gun was found. Tr. 208-
09. Vallery also admitted that he used to work for Armbruster for a couple of
years and that he knew him “pretty well.” Tr. 210-11. Armbruster does like to
drink and is not afraid to speak his mind. Tr. 211. When questioned by Vallery,
Armbruster stated that he had been drinking. Tr. 211. At the initial questioning of
Armbruster, Vallery noticed there was blood on the shirt and jeans that
Armbruster was wearing. Tr. 213. Armbruster also identified a camouflage shirt,2
which was found in Hayes’ vehicle, as a shirt he was wearing that night. Tr. 214.
When speaking with Armbruster at the emergency room, Vallery noticed that
Armbruster was in pain and that he had been drinking. Tr. 216.
{¶9} The next witness for the State was Detective Charles Boyer (“Boyer”)
of the Tiffin Police Department. Tr. 217. Boyer testified that after delegating
evidence collecting duties, he went to Three Oaks to process the scene. Tr. 220.
When he arrived at Three Oaks, the scene was already taped off. Tr. 220. Boyer
2 More than one shirt was found in Hayes’ vehicle.
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reviewed the scene in the taped off area and also checked the area outside of the
tape to insure that nothing was missed. Tr. 220-21. Inside the taped off area,
Boyer found two hats, an open-blade knife, a Pepsi, a $10 bill, and blood splatter
in seven different locations. Tr. 221. Boyer then photographed the entire area,
including around the bar. Tr. 221. Boyer identified Exhibits 43 through 58 as the
photos he took at Three Oaks. Tr. 222-25. The next day, Boyer assisted Vallery
in procuring search warrants for the vehicles which were secured. Tr. 229. Once
the warrants were obtained, Boyer participated in searching the two vehicles. Tr.
229. Boyer identified Exhibits 59-67 as photographs taken of the vehicles on
February 20, 2012, pursuant to the search warrant. Tr. 229-32.
{¶10} The sixth witness for the state was Sergeant Robert Bour (“Bour”) of
the Tiffin Police Department.3 Tr. 238. Bour testified that he was called in from
home to help investigate the stabbing at Three Oaks. Tr. 240. When he arrived at
Three Oaks, he was updated as to the status of the victim and his injuries, how the
victim came to be known and that the alleged suspect’s vehicle had been in a crash
resulting in the suspect and his wife being transported to the emergency room. Tr.
240-41. Bour then went to the scene of the traffic stop of the victim. Tr. 241.
When he arrived, he inspected the vehicle and “saw lots of blood.” Tr. 241. There
was blood under the driver’s seat, on the steering wheel, and on the outer door
3 At the time of the investigation, Bour was a detective, but was promoted to sergeant prior to trial.
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handle. Tr. 241. There also appeared to be fresh damage to the right front of the
vehicle. Tr. 241. Bout identified Exhibits 70 and 71 as photos he took at the
scene. Tr. 241. Once he had taken the photographs, Bour arranged to have the
vehicle towed to the Parks Department and secured. Tr. 242. Bour then returned
to Three Oaks to assist Boyer. Tr. 242. The next day, Bour assisted Boyer in
searching the vehicles. Tr. 242-43. Out of the red vehicle, they collected a long
sleeve, torn, bloody camouflage shirt. Tr. 243. On cross-examination, Bour
testified that Armbruster was traveling away from the hospital when he was
stopped. Tr. 249. Bour also admitted that he interviewed others who had been in
the bar, but not until several days if not weeks had passed. Tr. 252.
{¶11} Next, Carrie Robenalt (“Robenalt”) testified for the State. Tr. 261.
Robenalt was the bartender at Three Oaks on February 19, 2012. Tr. 263. She is
familiar with Armbruster and testified that he was in the bar that evening seated
near the back door. Tr. 263. Seifert was also there and was standing near
Armbruster. Tr. 263-64. Robenalt testified that neither Armbruster nor Seifert
were involved with any arguments or confrontations with anyone. Tr. 264. She
testified that a man and a woman got into an argument near the bathrooms that
night because she was engaging in conduct he did not like. Tr. 264. At the time,
she did not know who they were, but later learned that the man was Hayes and the
woman was Staci. Tr. 265. Robenalt testified that Hayes was dressed all in black
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and that Staci was wearing a white shirt. Tr. 265. When they left the bar, they
were arguing. Tr. 265. Both Hayes and Staci were very intoxicated. Tr. 266.
Although she did not know what they were saying she could tell they were
arguing. Tr. 266. They left out the back door. Tr. 267. Armbruster and Seifert
were still in the bar when Hayes and Staci left, and did not leave for at least a half
hour. Tr. 267. Later, Hayes and Staci came back inside with blood all over them
and Staci was upset. Tr. 267. Hayes had his right hand wrapped in a rag with
blood dripping from it. Tr. 267. When people started asking questions, Hayes
grabbed Staci’s hand and told her they had to leave. Tr. 268. Hayes then dragged
Staci down the hall and they left through the back door. Tr. 268. Other patrons
followed them out. Tr. 268. Soon after that, the police arrived. Tr. 268.
{¶12} On cross-examination, Robenalt testified that earlier in the evening
Seifert and another customer got into an argument and she threw out the other
customer.4 Tr. 287. She admitted that she had told Vallery that Seifert was angry
and wanted to fight with the other customer, however it was normal for the other
customer to cause problems. Tr. 289. She testified that on the night of the
incident, Three Oaks was very busy and it was standing room only. Tr. 290-91.
There was karaoke occurring in the bar that night and it was loud. Tr. 291. That
night, she was working at the bar and did not leave her station. Tr. 291. Robenalt 4 Robenalt testified that the other customer is a regular who usually gets thrown out every weekend for arguing with people. Tr. 287.
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was frustrated that night because they were very busy and the only other person
working was a trainee. Tr. 292. Up until the argument between Hayes and Staci,
they did not cause any disturbance. Tr. 292-93. Robenalt testified that
Armbruster and Seifert were drunk, but were not “trashed.” Tr. 293-94.
{¶13} On re-direct examination, Robenalt testified that Hayes and Staci had
also been drinking. Tr. 297. She testified that Staci was “really drunk” and was
bouncing off walls and bumping into people. Tr. 297. Hayes was also drunk as
she was serving him “double 77’s.” Tr. 298. On recross-examination, Robenalt
testified that she served Armbruster and Seifert Bud Light. Tr. 298.
{¶14} The next witness for the State was one of the victims, Armbruster.
Tr. 299. Armbruster testified that he and Seifert went from a gun raffle to a
friend’s home and then to Three Oaks. Tr. 300. Armbruster testified that he drove
his minivan. Tr. 300. He parked the van in the back lot, locked the vehicle, and
entered the bar through the back entrance. Tr. 301. Armbruster testified that he
and Seifert sat down at the end of the bar, but he knew some of the other people
who were there. Tr. 301. He did not have any arguments or fights with anyone
inside the bar that night. Tr. 302. When he and Seifert got up to leave, it was not
closing time yet. Tr. 303. They walked out the back door with the intention of
getting the rest of the beer out of the van and walking to Seifert’s home. Tr. 303.
Armbruster testified that as they were walking to the car, they saw Hayes pushing
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a woman around and they were screaming at each other. Tr. 304. Armbruster
continued to the van and when he reached it, he turned around to see Seifert and
Hayes arguing, but not fighting yet. Tr. 305. Armbruster then approached to try
and break it up, and “a girl” jumped on his back. Tr. 305. Armbruster then tried
to get her off the back. Tr. 306. At that time, Seifert and Hayes were fighting as
well. Tr. 306. After getting the girl off his back, he again went toward Seifert and
Hayes to try and break up the fight, and the girl jumped on his back again. Tr.
306. He again knocked her off of his back and went towards the fighting duo. Tr.
307. When he got there, he felt a stabbing and the rush of blood coming out of
him. Tr. 307. Armbruster did not see the knife. Tr. 307. Armbruster then went
back to the van, unlocked it, and got in. Tr. 308. As he started it, Seifert got into
the passenger side, and Armbruster put the van into gear and attempted to exit. Tr.
308. Hayes then started pounding on the windows and kicking the van until he
dented it. Tr. 308. Armbruster was just trying to get away, so he pulled out of the
parking lot and turned right. Tr. 309. Within a quarter of a mile, the police had
stopped him, and approached the van. Tr. 309. When the officer shined the
flashlight into the van, he showed him that he was covered in blood. Tr. 309. The
night of the incident, Armbruster was wearing a camouflage hat, a camouflage
shirt, a t-shirt, blue jeans, and tennis shoes. Tr. 310. During the scuffle with the
woman, he lost his hat and his camouflage shirt. Tr. 310.
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{¶15} The next thing Armbruster remembers was waking up on life support
in Toledo. Tr. 309. Armbruster testified that he was on life support for two days
and in the Intensive Care Unit for seven to ten days. Tr. 310. As a result of the
stabbing, he had lost 65% of his blood and had to have transfusions. Tr. 310-11.
In addition, his left lung collapsed and the doctors had to perform major surgery to
relieve the pressure from the internal bleeding. Tr. 311. Armbruster testified that
he was stabbed one time in his left side. Tr. 311. His lung will never “come
back” and he has had to have reconstructive surgery to fix a problem with his
stomach. Tr. 311. A year after the incident, Armbruster still was having problems
due to the stabbing. Tr. 311-12. Armbruster did not know who his attacker was
and had not spoken with him previously. Tr. 312.
{¶16} On cross-examination, Armbruster testified that he had three cans of
beer to drink at the gun raffle. Tr. 312. At Three Oaks, Armbruster drank two
more beers. Tr. 313. He might have had a single beer in the car between leaving
the raffle and going to the bar. Tr. 313. His blood alcohol level was above the
legal limit. Tr. 314. Armbruster testified that although he did not know who had
stabbed him, there were only three people there and he knew it was not Seifert.
Tr. 315. On redirect examination, Armbruster identified Exhibit 26, the
camouflage shirt found in Hayes’ vehicle, as the shirt he was wearing the night he
was stabbed. Tr. 320.
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{¶17} The ninth witness for the State was the second victim, Seifert. Tr.
323. Seifert testified that he, Armbruster, and another friend went to Bettsville
around 6:00 p.m. on February 18, 2012. Tr. 324. When they left, they took the
friend home and then he and Armbruster went to Three Oaks. Tr. 324.
Armbruster was driving. Tr. 324. Armbruster then parked at the back of the lot
and they entered the bar through the rear entrance. Tr. 325. Seifert denied that
either he or Armbruster argued or fought with anyone inside the bar that night. Tr.
325. When they left the bar, they went out the back door and he heard a man and
woman arguing. Tr. 327. Seifert testified that he told the man to “leave her
alone” and the man charged him. Tr. 327. He knew the man was Hayes because
he had gone to school with him. Tr. 327. Hayes pushed him and they ended up
“wrestling around on the ground.” Tr. 328. Armbruster was approximately ten
feet away and the girl was on his back. Tr. 328. The fight ended when Seifert,
who was on top of Hayes, let Hayes up. Tr. 328. When they stood up, he saw
Hayes pull something shiny out of his pocket and stab Armbruster with it. Tr.
328-29. Armbruster was stabbed on his left side. Tr. 329. Seifert did not recall
what happened between the stabbing and trying to get into the van. Tr. 329.
Seifert remembered that once they were in the van, Hayes began hitting it and
kicking at it while trying to get in. Tr. 329-30. They then pulled out of the
parking lot to get away but Seifert did not know where they were headed. Tr. 330.
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Almost immediately upon leaving the parking lot, they were pulled over. Tr. 330.
Once stopped, the patrolman came up with his flashlight and Seifert saw all the
blood. Tr. 330. Armbruster was quickly transported by ambulance. Tr. 331. A
friend of Seifert’s came to get him. Tr. 331.
{¶18} On cross-examination Seifert testified that he only lived two blocks
away from Three Oaks. Tr. 332. The police would not let him leave the scene to
walk home, but insisted that someone come and get him. Tr. 332-33. Seifert
admitted that he drank “approximately a 12 pack” that night. Tr. 333. Seifert
testified that he gave a statement to the officers at the traffic stop. Tr. 334.
However, he was unable to testify to how long he was at the stop or any other
details concerning the stabbing. Tr. 334. Bour came to Seifert’s home the next
day to collect the clothing that Seifert had been wearing the previous night. Tr.
336. Seifert also testified that during the fight with Hayes, they were both on the
ground, Seifert on top, and he was hitting the top of Hayes’ head. Tr. 338. On
redirect, Seifert testified that Hayes pulled the knife out and stabbed Armbruster
after the fight was over. Tr. 341-42.
{¶19} For their tenth witness, the State called Melissa Lovas (“Lovas”). Tr.
343. Lovas testified that she had known Hayes for a couple of years. Tr. 344.
She testified that at the time of the incident, she was at Three Oaks. Tr. 345. She
did not notice any fights or arguments inside the bar that evening. Tr. 345. She
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saw Hayes and Staci sitting at a table in the back with another couple. Tr. 346. At
some point in time, she saw Staci come in the back door with her hands bleeding
and wrapped in a shirt. Tr. 347. A couple seconds later, Hayes came in asking for
help. Tr. 347. Lovas went outside with Staci and Hayes went to get the car. Tr.
347. When Staci got into the car, Hayes got out of it and started punching a white
van. Tr. 347. Hayes then looked at Staci and “told her to grab the gun.” Tr. 348.
Lovas then went back into the bar. Tr. 348. Lovas admitted on cross-examination
that she did not see a gun and did not hear any gun shots. Tr. 35. As she was
getting ready to leave, the police arrived. Tr. 350.
{¶20} The next witness for the State was Cory Hess (“Hess”). Tr. 355.
Hess was a customer at the Three Oaks the night of the incident. Tr. 357. Hess is
an acquaintance of Armbruster and testified that Armbruster was wearing a
camouflage shirt and a ball cap that night. Tr. 357. Hess is also an acquaintance
of Seifert. Tr. 358. The night of the incident he saw a man and woman arguing.
Tr. 358. Hess did not know them, but the man was dressed all in black, except for
white tennis shoes. Tr. 358-59. The woman appeared to be very intoxicated, but
the man appeared to be “like a normal person”. Tr. 359.
{¶21} Vernon Hites (“Hites”) was the twelfth witness for the State. Tr.
361. Hites testified that he got to Three Oaks at around 2:00 a.m. the night of the
incident. Tr. 362. He and his friends entered through the front door. Tr. 363. As
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he was the designated driver, he was only drinking soda. Tr. 363. Hites testified
that he did not see any fights that evening, but as a result of a conversation about a
fight, he went looking for his son in the back hall. Tr. 263-64. He then went out
the back door into the parking lot where he saw a man arguing with a woman, and
pushing her towards a red Grand Prix. Tr. 364. The man was screaming at the
woman to get in the car. Tr. 364. Hites then returned to the bar and soon
afterwards, the police arrived. Tr. 365. On cross-examination, Hites testified that
he knows Armbruster, but did not see him in the bar. Tr. 368. Hites did not know
Seifert or Hayes. Tr. 368.
{¶22} The next witness was Mark Lang (“Lang”), who was a customer at
Three Oaks on the night of the incident. Tr. 369-70. Lang testified that he knows
Armbruster and he knows Hayes. Tr. 370-71. When he left around midnight, both
Hayes and Armbruster were both still there. Tr. 371. On February 19, 2012, Lang
opened the bar at 6:30 a.m. as the bartender. Tr. 372. Hayes came in between
7:00 and 8:00 a.m. Tr. 372. Lang testified that Hayes stated that he hoped
Armbruster was “hurt bad and in pain after the three guys jumped me last night.”
Tr. 373. Lang then told Hayes to leave. Tr. 373.
{¶23} For its fourteenth witness, the State presented Lieutenant Michelle
Craig (“Craig”) of the Tiffin Police Department. Tr. 376. Craig testified that she
went to the crash site where Hayes and Staci were. Tr. 379. When she arrived,
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the ambulance with Staci was leaving, but Hayes was still at the scene. Tr. 379.
Hayes was dressed all in in black. Tr. 380. Hayes had a bloody nose and said he
was sore, so he was transported to the hospital as well. Tr. 380. At the scene, she
observed a cloth that appeared to be bloody behind the driver’s seat of Hayes’ car.
Tr. 380. Craig identified Exhibit 75 as a photograph of the bloody cloth taken
through the window. Tr. 381.
{¶24} After the scene of the crash, Craig went to the hospital. Tr. 382. At
the hospital, Craig spoke with Hayes. Tr. 382. Craig testified that she has known
Hayes for a long time and that he was intoxicated. Tr. 382. Craig observed some
small pin-sized spots that had been bleeding on his left side. Tr. 383. She also
saw where the top layer of skin on the inner side of Hayes’ right hand had been
scraped off. Tr. 383. She notice that there was blood on Hayes’ hands and all
over his clothing. Tr. 384. In addition to taking photographs of Hayes, she
collected his clothing and collected swabbings from his hands. Tr. 384. Exhibit
77 was identified as a photograph of Hayes’ right side of his head, which he
claimed was hit with a brick, though the injuries did not appear to support that
claim. Tr. 384-85. Craig also identified Exhibit 78 as a photograph showing the
left side of Hayes’ face and some small cuts. Tr. 385. At the hospital, Hayes told
Craig that when he and Staci were leaving Three Oaks, “three guys came and
started hitting him or booting him, kicking him, thumping him.” Tr. 386. Craig
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testified that Hayes was unsure whether it was three, four, five, or six men. Tr.
386. Hayes described the men as white males in their 30’s and was unable to
provide any other details or give an explanation as to why it happened. Tr. 386.
Hayes repeatedly stated that he was getting beat or stomped, but would also say
that he was not really hurt. Tr. 386-87. When asked about the knife, Hayes
claimed he only had a pocket knife, but it was not in his pockets when checked.
Tr. 387. Hayes described the knife he had as “all black.” Tr. 387. The injuries
claimed by Hayes did not match up with the injuries observed by Craig. Tr. 388.
Hayes claims the fight ended when he got away and got into the car. Tr. 389.
Hayes told Craig that he had not gone back into the bar. Tr. 389.
{¶25} In addition to speaking with Hayes, Craig also had the opportunity to
question Staci. Tr. 390. Staci claimed that her elbow was damaged when she was
thrown to the ground after jumping on someone after the fight. Tr. 390. Craig
collected her clothing as well. Tr. 390.
{¶26} On February 21, 2012, Craig spoke with Hayes again. Tr. 392.
Hayes told her that when he and Staci left Three Oaks, he was attacked by three
men in the parking lot. Tr. 392. The men started kicking him and hitting him. Tr.
392. Hayes claimed that his hand got cut when he reached down to prevent his
assailants from getting his knife, only to discover that it was open. Tr. 393. When
Craig asked Hayes if he knew Seifert or Armbruster, he denied that he did. Tr.
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394. Hayes was unable to explain how Armbruster’s shirt got into his car. Tr.
394. Craig also testified that she contacted Staci to have her look at a photo
lineup, but Staci never came in to do so. Tr. 395-96. When they came in for
questioning, Craig took DNA samples of Staci and Hayes pursuant to a search
warrant. Tr. 396-97. Craig also questioned Hayes as to why he had not called the
police about the attack. Tr. 398. Hayes told her he wanted to “assess the situation
first” because he was not really harmed. Tr. 398. Hayes admitted that he saw the
police officer that had pulled Armbruster over when he left, but did not go over to
the officer to report the attack. Tr. 398.
{¶27} On cross-examination, Craig testified that the blood samples taken
from Hayes’ hands were not tested. Tr. 405. Craig admitted that Hayes’ claim
that he was attacked was consistent and had not changed. Tr. 405. When
questioned about the kind of shoes that were “stomping” him in the face, Hayes
repeatedly identified them as boots. Tr. 409-10. At the hospital, Craig went back
and forth between Staci and Hayes when asking questions. Tr. 413. One of the
injuries sustained by Hayes at some point in time, whether during the fight or the
subsequent accident was a dislocated nose. Tr. 414-15.
{¶28} On redirect, Craig testified that Hayes was a suspect in the stabbing
because he matched the description and had a lot of blood on him that was not
from the accident. Tr. 417-18. Craig also testified that they did not send the
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samples from Hayes’ hands because BCII refuses to test more than five pieces of
biological evidence. Tr. 420. When questioned about the stabbing, Hayes told
Craig that “if somebody got stabbed because of him and his wife, he was glad.”
Tr. 421.
{¶29} The next witness for the State was Ted Manasian (“Manasian”), a
forensic scientist at BCII. Tr. 424-25. Manasian testified that he is an expert in
fiber analysis, and was declared such by the trial court. Tr. 426-27. In this case,
Manasian was asked to examine defects in clothing to determine whether it was
caused by cutting or tearing. Tr. 428. The items submitted for testing included
the knife, the fibers found on the knife, the camouflage shirt identified as
belonging to Armbruster, the sweat jacket identified as belonging to Seifert, and a
t-shirt identified as belonging to Armbruster. Ex. 40. Manasian testified that he
found numerous fibers on the knife blade. Tr. 437. The fibers on the knife did not
match those from the white tank top, but there were fibers from the sweat shirt
found on the knife. Tr. 437. There were also additional fibers present that were
inconsistent with the two articles of clothing submitted. Tr. 438. Although the
“defect” found in the camouflage shirt was not analyzed to determine if it was a
cut or a tear, it was noted that its position was consistent with the position of the
cut tear found on the white shirt. Tr. 438. The defect in the white shirt was
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examined and was determined to be a cut, not a tear. Tr. 438. The defect in the
sweat jacket was also determined to have been a cut. Tr. 438.
{¶30} Julie Cox (“Cox”), was a forensic scientist for BCII that testified
next. Tr. 443. After numerous questions concerning her qualifications, the trial
court declared Cox to be an expert in the field of forensic biology. Tr. 444-45.
Cox testified that she took the blood samples from the submissions, determined
that they were blood, and prepared them for DNA sampling. Tr. 446. Cox
testified that she took samples from the knife, the camouflage shirt, and a pair of
jeans belonging to Staci. Tr. 447-48. The samples were identified as blood and
sent on for DNA testing. Tr. 449. In addition, Cox had four DNA reference
samples, one each from Staci, Hayes, Armbruster, and Seifert. Tr. 449. The
results were that Cox found no identified blood on the knife. Tr. 451. The
camouflage shirt, the jacket, and the jeans tested positive for the presence of
blood. Tr. 451. Those samples were forwarded for DNA testing. Tr. 451. Cox
testified that although a knife is used to stab a person, it may not have blood on it
if it is removed quickly before the blood has time to deposit. Tr. 451.
{¶31} The final witness to testify during the State’s case-in-chief was Erica
Jimenez (“Jimenez”), who is also a forensic scientist in the DNA unit for BCII.
Tr. 458. The trial court determined that Jimenez was qualified to be an expert
witness in the field of DNA analysis and comparisons. Tr. 460. Jimenez testified
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that in assault cases, law enforcement may submit up to five items for initial
analysis. Tr. 463. If there is not a probative result, additional items may be
submitted. Tr. 464. Jimenez testified that the first item examined was the knife
and they took DNA from the handle of the knife and from the blade of the knife.
Tr. 468. From the blade of the knife, the DNA was a mixture of DNA consistent
with both Armbruster and Hayes. Tr. 468. The sample from the handle of the
knife was consistent with the DNA of Hayes. Tr. 468. The blood sample from the
shirt was consistent with the DNA of Armbruster. Tr. 468. The samples from the
collar of the shirt were consistent with DNA from Armbruster along with DNA
from Staci. Tr. 468. As for the jacket, the presumptive blood stain was consistent
with that of Hayes.5 Tr. 469. The blood found on Hayes’ jeans was consistent
with that of Hayes. Tr. 469. The last item was the sample taken from Staci’s
jeans. Tr. 469. That blood stain was consistent with that of Armbruster. Tr. 469.
{¶32} On cross-examination, Jimenez testified that they do not test all the
blood on any item, just limited pieces. Tr. 475. She also testified that they would
not take additional samples unless requested to do so by the detective. Tr. 476-77.
Jimenez testified that no samples were submitted from shoes, hats, of Hayes’
hands. Tr. 477. With DNA, they cannot say who the DNA belongs to
conclusively, but rather who may not be excluded as the source. Tr. 478. 5 The owner of the jacket was not identified at this time. However, the jacket sent for testing was a leather jacket that was identified as belonging to Hayes. Ex. 42.
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{¶33} Following the testimony of its seventeen witnesses, the State rested.
Tr. 480. All 79 exhibits of the State were admitted without objection. Tr. 480.
Hayes then presented his defense. The first witness for Hayes was Robby Baker
(“Baker”). Tr. 490-91. Baker testified that on the night of the incident, he and his
wife went with Hayes and Staci to Three Oaks. Tr. 491-92. He and his wife left
the bar around 1:30 a.m. Tr. 492. Hayes and Staci left before he did. Tr. 493.
When Baker and his wife went to leave, he realized that Staci had left her coat, so
he took it with them to return to Staci later. Tr. 495. As they were leaving, Baker
saw a car pulled over by law enforcement nearby. Tr. 495. They then left. Tr.
495. The next day Hayes came to his house to get the coat and they discussed the
car accident. Tr. 497-98. On cross-examination, Baker testified that he had been
parked out front. Tr. 501. He also testified that Staci was very intoxicated that
night. Tr. 501-02.
{¶34} The second and final witness for Hayes was Staci. Tr. 503. Staci
testified that she and Hayes arrived at Three Oaks around 9:00 or 9:30 p.m. Tr.
504. She admitted that there was an incident where she was behaving
inappropriately that Hayes had seen. Tr. 504. According to Staci, Hayes was not
angry, but joking and they were having a good time. Tr. 504-05. When they left
the bar, Baker walked them to the back door and she and Hayes left. Tr. 505.
When they were walking to the car, Hayes gave her the keys for her to drive. Tr.
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507. When they were six to eight feet away from the car, three men “came around
from the left and started punching and hitting on my husband, knocked him to the
ground.” Tr. 507. Staci testified that the men were kicking and punching Hayes
while he was on the ground. Tr. 507. Staci then attempted to pull one of the men
off of him, but the man grabbed a hold of her and “slammed” her to the ground.
Tr. 508. When she got back up, Staci saw them still attacking Hayes, so she again
tried to pull one of the men off of Hayes. Tr. 508. Again, she was thrown to the
ground. Tr. 508. Then, the three men just quit striking Hayes, turned and walked
away. Tr. 509. Staci then helped Hayes into the passenger seat of the car, and
they left to go home. Tr. 509. Within 10 minutes, they were struck head on by
another car. Tr. 510. The police arrived, asked questions, and called an
ambulance to take Staci to the hospital. Tr. 511. At the hospital, she spoke to
Craig. Tr. 511. Although Staci was not able to speak to Hayes at the hospital, she
knew that he was being treated and that Craig was talking to him as well. Tr. 512-
13. Staci testified that at no point in the evening was Hayes angry with her. Tr.
513-14. Staci also testified that when they went to the police station later, they
attempted to make a report of being attacked outside the bar, but were told there
was no one available at that time. Tr. 514. Staci testified that Hayes did not stab
anyone and that she did not see anyone being stabbed in the parking lot. Tr. 515.
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{¶35} On cross-examination Staci admitted that she had consumed one or
two drinks right after work. Tr. 516. She also had one beer at dinner and multiple
drinks at Three Oaks. Tr. 517. Staci also admitted that she could not describe any
of the attackers and that she did not run inside the bar to ask for help. Tr. 517. As
to the photo line-up, Staci admitted that she did not return Craig’s calls to schedule
one. Tr. 519. Staci explained this on redirect by testifying that since her husband
was their suspect, she did not want to work with the police. Tr. 522.
{¶36} Following Staci’s testimony, Hayes rested his case. Tr. 525. The
State chose not to put on any rebuttal witnesses. Tr. 525. On February 28, 2013,
the jury returned verdicts of guilty on both counts. Doc. 41. The trial court
accepted and journalized the verdicts on February 28, 2013. Doc. 41. The first
sentencing hearing was held on April 18, 2013, but was continued to resolve an
issue with restitution. Doc. 45. A second sentencing hearing was held on April
26, 2013, but the issue of restitution remained unresolved, so the hearing was
again continued. Doc. 47. The final sentencing hearing was held on May 24,
2013. Doc. 51. Following the hearing, the trial court sentenced Hayes to seven
years in prison on count one and five years in prison on count two, with the
sentences to run concurrently. Id. at 2. The trial court also ordered Hayes to pay
restitution in the amount of $6,633.12. Id. at 3. Hayes filed his timely notice of
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appeal on May 28, 2013. Doc. 54. On appeal, Hayes raises the following
assignments of error.
First Assignment of Error
[Hayes’] conviction was not supported by the manifest weight of the evidence.
Second Assignment of Error
The counsel for [Hayes] provided ineffective assistance of counsel.
{¶37} In the first assignment of error, Hayes claims that his conviction was
against the manifest weight of the evidence. “A reviewing court may find a
verdict to be against the manifest weight of the evidence even though legally
sufficient evidence supports it.” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-
7247, ¶76, 781 N.E.2d 980.
A reviewing court considering a manifest-weight claim “review [s] the entire record, weighs the evidence and all reasonable inferences, [and] considers the credibility of witnesses.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. The question for the reviewing court is “whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.” Id. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
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Id. at ¶77. Although the appellate court acts as a thirteenth juror, it still must give
due deference to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness' reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact- finder.
State v. Risch, 3d Dist. Wyandot No. 16-10-14, 2011-Ohio-3633, ¶5 (quoting
State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (1998)).
{¶38} In this case, Hayes was charged with two counts of felonious assault
in violation of R.C. 2903.11(A)(2),(D)(1)(a). To obtain a conviction on these
charges, the State was required to prove beyond a reasonable doubt that Hayes had
1) knowingly, 2) caused or attempted to cause physical harm to another, 3) by
means of a deadly weapon, and 4) it occurred in Seneca County. R.C.
2903.11(A)(2).
{¶39} The first count of the indictment alleged that Hayes committed
felonious assault against Armbruster. Armbruster testified that he went back to
help Seifert and as he was walking, he was stabbed. Seifert testified that he saw
Hayes pull something shiny out and stab Armbruster. Hayes admitted to having a
knife, but claims he lost it. A knife was found at the scene. When the DNA from
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the knife was tested, the blade had a mix of DNA that was consistent with that of
Armbruster and Hayes. The DNA on the handle of the knife was consistent with
that of Hayes. Additionally, the blood found on Staci’s jeans was consistent with
that of Armbruster. The shirt, identified by Armbruster as the one he wore the
night of the incident was found bloody and in the back of Hayes’ car. Hayes had
no explanation as to how the shirt got there. Craig testified that Hayes told her he
was glad somebody got stabbed. Lang testified that Hayes told him that he hoped
Armbruster was hurt bad. In contradiction, Staci testified that Hayes was attacked
by three men and that he had not stabbed anyone. She seemed to be implying that
Armbruster and Seifert must have been two of the three men who attacked Hayes.
However, Craig testified that Hayes’ story of the attack was not consistent with the
physical evidence. Hayes’ version of events was also not consistent with the
testimony of Lovas who testified that she saw Hayes punching the white van,
which was identified as belonging to Armbruster. The evidence presented does
not weigh heavily against conviction and does not indicate that the jury lost its
way. Thus, the verdict as to count one is not against the manifest weight of the
evidence.
{¶40} In the second count of the indictment, Hayes was charged with
committing felonious assault against Seifert. Unlike the first count where the
victim suffered physical harm, there was no allegation of physical harm to Seifert.
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Instead, the State was relying on the fact that Hayes attempted to cause physical
harm to Seifert. Seifert did not testify that Hayes attempted to cause physical
harm to him with the knife. However, there is evidence that this occurred.
Vallery identified Exhibits 11 and 12 as photographs of a jacket recovered from
Seifert. Tr. 191. Exhibit 11 shows that there is a defect in the jacket which could
be either a tear or a cut. Vallery also identified that jacket itself, Exhibit 38, as the
jacket worn by Seifert the night of the attack and testified that it was sent to BCII
for analysis. Tr. 201. Manasian testified that he had examined the jacket,
identified as belonging to Seifert and being worn the night of the incident.
Manasian testified that the defect in the jacket was the result of a cut, not a tear.
Tr. 438. In addition, Manasian examined fibers taken off the knife. Manasian
found multiple fibers on the knife blade which were consistent with that found in
the jacket. Tr. 438. There was also testimony by Jimenez that the only DNA
found on the handle of the knife was consistent with that of Hayes. Although
there was no direct evidence that Hayes had attempted to harm Seifert with the
knife, there was circumstantial evidence to that fact. A reasonable juror could
infer from the evidence that Hayes had attempted to cause physical harm to Seifert
with the knife by the fact that there was a cut to the jacket worn by Seifert at the
time of the incident and the knife that belonged to Hayes, with only Hayes’ DNA
on the handle, had matching fibers on its blade. The evidence presented does not
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weigh heavily against conviction and does not indicate that the jury lost its way.
Thus, the verdicts are not against the manifest weight of the evidence. Therefore,
the first assignment of error is overruled.
{¶41} In the second assignment of error, Hayes claims that his trial counsel
was ineffective.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; **915 State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905.
“Judicial scrutiny of counsel's performance is to be highly deferential, and reviewing courts must refrain from second- guessing the strategic decisions of trial counsel. To justify a
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finding of ineffective assistance of counsel, the appellant must overcome a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted.)
State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998).
{¶42} In support of his argument, Hayes claims that his counsel was
ineffective for 1) failing to have other items of evidence tested and 2) for failing to
raise the affirmative defense of self-defense. An attorney’s determination of what
evidence to present at trial is a matter of trial strategy. State v. Hester, 10th Dist.
Franklin No. 02AP-401, 2002-Ohio-6966. Although Hayes claims that counsel
should have had various items tested for additional DNA, there is nothing to
suggest that it would have been helpful. For example, if his counsel had requested
that the blood from Hayes hands be tested and the results indicate that the blood
belonged to Armbruster, how would that have helped his case? If the results
would have come back and shown that the blood was his own, that would have
only shown that he was injured, which the jury already knew. This would not
have shown that he did not stab Armbruster, only that the swab was his own
blood. Additional testing would not have changed the fact that Hayes’ knife was
found at the scene with only DNA consistent with Hayes on the handle and with a
mixture of DNA consistent with Armbruster and Hayes on the blade. Without
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some showing that the missing evidence would have assisted in the presentation of
Hayes’ defense, this court cannot second guess the trial strategy of counsel.
{¶43} Hayes also claims that counsel was ineffective for failing to raise a
claim of self-defense. When a claim of self-defense conflicts with the defense
presented, it is sound trial strategy not to raise a claim of self-defense. State v.
Marshall, 175 Ohio App.3d 488, 2008-Ohio-955, ¶86, 887 N.E.2d 1227 (1st Dist.).
In this case, Hayes claimed, through his statements to the police and the testimony
of Staci, that the events did not happen. Hayes claimed that he was attacked in the
parking lot by three men, but that he never pulled out his knife or stabbed anyone.
This argument would have been contradictory to an argument that there was a
fight, but the aggressor was Seifert and Armbruster, so he stabbed them to protect
himself or Staci. Thus, the decision not to request an instruction on self-defense
was a matter of trial strategy.
{¶44} Since trial counsel did not err by not requesting additional testing and
not raising self-defense as an affirmative defense, there was no violation of
counsel’s duties. The first prong of the test is not met. In addition, appellate
counsel has not presented any evidence to indicate that the outcome would have
been different if trial counsel had done the above. Thus, the second prong of the
test is also not met. The second assignment of error is overruled.
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{¶45} Having found no error prejudicial to appellant as to the particulars of
the errors assigned and argued, the judgment of the Court of Common Pleas of
Seneca County is affirmed.
PRESTON and ROGERS, J.J., concur.
/hlo
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